High Court rules on silk debate: Process not unconstitutional

THE High Court has rejected a constitutional challenge to the procedure for appointing senior counsel, also known as "silk," brought by attorney Israel Khan, SC.

The ruling, delivered by Justice Devindra Rampersad on November 29, upheld the current process, which involves the Prime Minister's advising the President on appointments.

Khan argued the procedure violated the separation of powers by allowing political influence over a decision critical to the independence of the legal profession.

However, the court found no constitutional breach in the longstanding practice.

“Nothing is unlawful in the current procedure,” Rampersad said.

“Ultimately, the court has to decide, after hearing all of the evidence and the submissions, whether the President can act of her own volition by reason of the unconstitutionality of the provisions in question.

“The short answer, in this court’s respectful view, without having to recite the numerous authorities relied upon by the parties, is that the claimant has failed to show that, as it is currently couched, the provision is unconstitutional or is unlawful.

“That conclusion is based on what has been said in the previous sections. It therefore follows that since there is no provision in the Constitution or any other law that allows the President to exercise her own discretion, the general rule applies that she shall act upon the advice of Cabinet.

“That is especially so since there is nothing which empowers her to exercise her own discretion otherwise and the provision has not been shown to be unconstitutional in these circumstances.”

He also noted that the appointment still operated under the 1964 Gazette conditions, which required the Attorney General to consult with the Chief Justice and “such other persons or bodies as he considered necessary.”

“In the past, the Attorney General has sought consultation with the LATT even as late as 2023.

“It is clear that the current process is not unlawful. It is also clear that there is public clamour and considerable effort exerted by the claimant himself, through his own private writing, and by the LATT and several other luminaries and thinkers and leaders, that the current system is inappropriate and has to be changed.

“No doubt, such a position makes eminent good sense."But, he said, the court has found nothing unlawful with the current process, which was its remit.

He declared the requirement under 80(1) of the Constitution for the President to act on the advice of the Cabinet or Prime Minister for the appointment of senior counsel was valid.

He also declared the gazetted procedure was also valid.

In an afterword, Rampersad said based on the concerns raised over the last two decades by previous chief justices, attorneys general and senior attorneys, including LATT, “It is this court’s respectful and hopeful wish that care and consideration will be given to the extensive work done since 2005 to now – almost 20 years – to try to change the process and make it more palatable and more transparent.”

He said the court recognises change depended on political will, which did not seem forthcoming at present, as indicated by the defendant…No timeline in the alternative was suggested at all.

“At the end of the day, this is regrettable since it continues to leave a sour taste for the public and, in particular, the legal profession. It also leaves a stain on appointees who, despite their merit, may be coloured by the broad brush of perceived political patronage...

“This issue is too important and too crucial to the rule of law in the Republic of Trinidad and Tobago not to have a reasonable and expeditious solution and resolution.”

Rampersad also commended Khan for his “unwavering commitment to his oath as a senior attorney and deep sense of responsibility and desire for the profession as a senior attorney.

“Too many are unable or unwilling to walk the walk,” the judge said.

Khan claimed the process for appointing senior counsel breached the separation of powers, through the Prime Minister’s involvement.

His interpretation claim, filed in 2023, was heard in September. The debate over the selection process was reignited in June with the appointment of 16 senior counsel.

Khan argued that the President should exercise discretion or seek advice from authorities other than the Cabinet, such as the Chief Justice, when appointing senior counsel.

Khan, represented by attorneys Ravi Heffes-Doon, Daniel Khan, Vincent Patterson and Joshua Hamlet, asserted the current procedure undermined the independence of the legal profession, a cornerstone of justice.

Heffes-Doon argued that appointments to senior counsel represent a promotion within the legal profession, not merely an honorary title, and must be shielded from political influence.

The challenge questioned the legality of a 1964 legal notice which requires the President to act on the advice of the prime minister in appointing senior counsel. This process, Khan claimed, violated constitutional principles and was ultra vires the president’s powers.

Representing the Attorney General, Senior Counsel Russell Martineau defended the existing system, asserting that the appointment of senior counsel is an executive function.

“It is a status granted by the State, not the Judiciary,” Martineau said, emphasising that the Judiciary’s role is consultative.

The Law Association of TT (LATT), an interested party in the case, has also called for reforms.

Former attorney general Ramesh Lawrence Maharaj, SC, noted that while the existing law is constitutional, it should be updated. He supported a 2015 LATT resolution proposing an independent panel to recommend silk appointments.

Speaking after Rampersad delivered the ruling virtually, Martineau said he owed it to his client to note that the Executive has “not ignored what has been agitated.”

“They have not ignored the representations that have been made. It would be unfair for it to appear they have turned a blind eye,” he said, adding that the Executive was open to suggestions.

Senior Counsel Kerwyn Garcia, Ronelle Hinds, Zara Smith, Victoria Armorder, Kristyn Lewis, Lianne Thomas, Chantelle Le Gall also represented the Attorney General.

Michael Rooplal, Saira Lakhan, Nabilah Khan, Jonathan Khan, Vishala Khadoo and Lindsay Webb appeared for the Law Association.